United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: June 29, 2010
No. 07-5347
ARI Z. ZIVOTOFSKY, M.B.Z. BY HIS PARENTS AND GUARDIANS
AND NAOMI SIEGMAN ZIVOTOFSKY, M.B.Z.
BY HIS PARENTS AND GUARDIANS,
APPELLANTS
v.
SECRETARY OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01921)
______
On Petition for Rehearing En Banc
Before: SENTELLE, Chief Judge, and GINSBURG,
HENDERSON, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and
KAVANAUGH, Circuit Judges.
2
ORDER
Appellants’ petition for rehearing en banc and the response
thereto were circulated to the full court, and a vote was
requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is
ORDERED that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
Circuit Judges Ginsburg, Rogers, and Kavanaugh would
grant the petition for rehearing en banc.
A statement by Senior Circuit Judge Edwards is attached.
3
EDWARDS, Senior Circuit Judge, statement regarding the
court’s denial of en banc review: By a divided vote, the active
Judges of the court have voted against en banc review of this
case. In my view, the court has made a serious mistake.
It would be a stretch to say that the appellants, Ari
Zivotofsky and his parents, have suffered a travesty of justice.
The panel majority ruled that the Zivotofskys’ claim should be
dismissed because it raises a nonjusticiable political question.
Zivotofsky v. Sec’y of State, 571 F.3d 1227 (D.C. Cir. 2009). I
dissented from this decision because, in my view, it is wrong as
a matter of law. Id. at 1233. However, I agree that even if the
Zivotofskys are given their fair day in court, as is their due, they
will likely lose on the merits. A shallow view of this case would
thus suggest that en banc review looks like too much work for
too little gain. I reject this view.
There is much more at stake in this case than just the
personal claim raised by the Zivotofskys. This case calls into
question the role of a federal court in our system of justice. And
it concerns the responsibility of a federal court to ensure that
parties who are properly before the court are heard and afforded
a just and coherent answer to their claims. The court’s action
today ignores that our system of justice is founded on a “starting
presumption that when jurisdiction is conferred, a court may not
decline to exercise it.” Union Pacific R.R. Co. v. Bhd. of
Locomotive Eng’rs and Trainmen, 130 S. Ct. 584, 590 (2009).
A federal court
has the duty to review the constitutionality of congressional
enactments. . . . “Our system of government requires that
federal courts on occasion interpret the Constitution in a
manner at variance with the construction given the
document by another branch. The alleged conflict that such
an adjudication may cause cannot justify the courts’
4
avoiding their constitutional responsibility.” Powell v.
McCormack, 395 U.S. 486, 549 (1969).
United States v. Munoz-Flores, 495 U.S. 385, 391 (1990)
(emphasis added). The federal courts cannot seek refuge in the
political question doctrine to avoid their constitutional
responsibility, for “‘[w]e have no more right to decline the
exercise of jurisdiction which is given, than to usurp that which
is not given.’” Union Pacific R.R. Co., 130 S. Ct. at 590
(quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)).
In refusing to rehear this case en banc, the court has
effectively conflated the distinction between cases involving
justiciable separation of powers issues and nonjusticiable
political questions, expanded the political question doctrine
beyond anything that the Supreme Court has ever endorsed, and
left the law of the circuit in a state of disarray. This case raises
an extraordinarily important question that should have been
reheard en banc by this court. The inconvenience of en banc
review is no justification for its denial in a case of this
importance.
****
In 2002, Congress passed the Foreign Relations
Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116
Stat. 1350 (2002). Section 214 of the Act, entitled “United
States Policy with Respect to Jerusalem as the Capital of Israel,”
includes the following provision which is at issue in this case:
(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR
PASSPORT PURPOSES – For purposes of the registration
of birth, certification of nationality, or issuance of a
passport of a United States citizen born in the city of
Jerusalem, the Secretary shall, upon the request of the
citizen or the citizen’s legal guardian, record the place of
birth as Israel.
5
Id. § 214(d). Menachem Binyamin Zivotofsky was born in 2002
in Jerusalem. Because his parents are United States citizens,
Zivotofsky is also a United States citizen. After Zivotofsky’s
birth, his mother filed an application on his behalf for a consular
report of birth abroad and a United States passport. She
requested of United States officials that these documents
indicate her son’s place of birth as “Jerusalem, Israel.” United
States diplomatic officials informed Mrs. Zivotofsky that,
pursuant to Executive regulations, passports issued to United
States citizens born in Jerusalem could not record “Israel” as the
place of birth. When the Zivotofskys received Menachem’s
passport and consular report, both documents recorded his place
of birth as “Jerusalem.” On his behalf, Zivotofsky’s parents
filed this action under § 214(d) against the Secretary of State
seeking to compel the State Department to identify Menachem’s
place of birth as “Israel.”
The Secretary does not doubt that the Zivotofskys have
standing to raise a viable cause of action under § 214(d) of the
Foreign Relations Authorizations Act. Nor does the Secretary
doubt that the Zivotofskys properly invoked the District Court’s
statutory jurisdiction under 28 U.S.C. §§ 1331, 1346(a)(2), and
1361. Therefore, the issue before this court is:
Whether § 214(d) of the Foreign Relations Authorizations
Act, which affords Zivotofsky a statutory right to have
“Israel” listed as the place of birth on his passport, is a
constitutionally valid enactment.
Put another way, the court must decide:
Whether, in enacting § 214(d), which is aimed at “United
States Policy with Respect to Jerusalem as the Capital of
Israel,” Congress impermissibly intruded on the President’s
exclusive power to recognize foreign sovereigns.
6
These questions involve commonplace issues of statutory
and constitutional interpretation, and they are plainly matters for
the court to decide. The Supreme Court has made it clear time
and again that the “federal courts lack the authority to abstain
from the exercise of jurisdiction that has been conferred.” New
Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.
350, 358 (1989); see also Boumediene v. Bush, 553 U.S. 723,
128 S. Ct. 2229, 2252-53 (2008); Munoz-Flores, 495 U.S. at
390-91; I.N.S. v. Chada, 462 U.S. 919, 941-43 (1983); Powell v.
McCormack, 395 U.S. 486, 521 (1969); Baker v. Carr, 369 U.S.
186, 211 (1962); Vermilya-Brown Co. v. Connell, 335 U.S. 377,
380 (1948).
In this case, there are two questions that are properly before
the court: (1) whether the Executive’s passport policy reflects
an action taken within the President’s exclusive power to
recognize foreign sovereigns; and, if so, (2) whether Congress’
enactment of § 214(d) impermissibly intrudes on the President’s
exclusive power to recognize foreign sovereigns. These
questions raise issues that are constitutionally committed to the
Judicial Branch to decide. The Zivotofskys’ claim resting on
§ 214(d) does not require this court to evaluate the wisdom of
the Executive’s foreign affairs decisions or to determine the
political status of Jerusalem. The court’s role in this case is to
determine the constitutionality of a congressional enactment.
And this role is well within the constitutional authority of the
judiciary. Baker, 369 U.S. at 212 (“[O]nce sovereignty over an
area is politically determined and declared, courts may examine
the resulting status and decide independently whether a statute
applies to that area.”); Vermilya-Brown Co., 335 U.S. at 380-81
(Whether the Fair Labor Standards Act covered employees
allegedly engaged in commerce or production of goods for
commerce on a leasehold of the United States, located on the
Crown Colony of Bermuda, was not a political question outside
of judicial power but could be determined by the court).
7
The panel majority opinion in this case is founded on the
view that the court cannot award the relief the Zivotofskys seek
because that relief can be granted only by the Executive Branch.
But this puts the cart before the horse. A conclusion that relief
can be granted only by the Executive Branch can only be
reached after the court addresses the separation of powers
question that is at the heart of this case. The Executive Branch
does not prevail merely because it asserts that it has exercised
its recognition power. As noted above, this court must first
determine whether the Executive’s passport policy reflects an
action taken within the President’s exclusive power to recognize
foreign sovereigns and, if so, whether Congress’ enactment of
§ 214(d) impermissibly intruded on the President’s exclusive
power. A simple hypothetical amplifies this point.
Assume that a lawfully enacted congressional statute
provides that individuals over the age of 18 have a right to
secure a passport on their own. Assume further that the statute
gives individuals an enforceable right of action. If the Secretary
of State adopts a policy pursuant to which 18-year-olds are
denied passports without parental consent, claiming an exercise
of the Executive’s recognition power, an aggrieved party would
have a right of action to challenge the Secretary. A federal court
hearing the case surely would entertain the plaintiff’s claim and
decide it on the merits. Indeed, we would reject as absurd any
claim by the Executive that the plaintiff’s claim should be
dismissed as a “political question” merely because the Executive
has asserted a right to deny passports without parental consent.
The plaintiff would have standing to pursue her claim and the
federal court would have jurisdiction to decide it. And the court
would be well able to evaluate the competing claims of power
and easily determine that the Executive overreached in its
assertion of exclusive authority under the recognition power.
The court would find no valid exercise of textually committed
power by the Executive Branch.
8
In this case, Congress has passed a bill that purports to
regulate passports. The Executive has contended that the statute
exceeds the authority of Congress because it interferes with the
Executive’s exercise of its recognition power. The court must
therefore determine the constitutionality of the statute. As the
Court noted in Munoz-Flores:
The Government may be right that a judicial finding that
Congress has passed an unconstitutional law might in some
sense be said to entail a “lack of respect” for Congress’
judgment. But disrespect, in the sense the Government uses
the term, cannot be sufficient to create a political question.
If it were, every judicial resolution of a constitutional
challenge to a congressional enactment would be
impermissible. Congress often explicitly considers whether
bills violate constitutional provisions. . . . Yet such
congressional consideration of constitutional questions does
not foreclose subsequent judicial scrutiny of the law’s
constitutionality. On the contrary, this Court has the duty
to review the constitutionality of congressional enactments.
495 U.S. at 390-91.
In a case of this sort, the political question doctrine would
bar judicial review only if the precise matter to be decided has
been constitutionally committed to the exclusive authority of
one of the political branches of government. Compare Nixon v.
United States, 506 U.S. 224, 229-36 (1993), with Powell, 395
U.S. at 519-22. Because there is nothing in the Constitution that
gives either political branch the exclusive authority to determine
whether the Executive has acted pursuant to the recognition
power or whether a congressional enactment has infringed the
Executive’s power, the court must resolve the issues.
The simple point here is that it is the role and responsibility
of the federal courts to decide whether and to what extent a
9
matter is reserved to the exclusive authority of a political
branch. See Nixon, 506 U.S. at 238 (“[C]ourts possess power to
review either legislative or executive action that transgresses
identifiable textual limits.”); Powell, 395 U.S. at 521
(“[W]hether there is a ‘textually demonstrable constitutional
commitment of the issue to a coordinate political department’ of
government and what is the scope of such commitment are
questions we must resolve.”); Baker, 369 U.S. at 211 (“Deciding
whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate
interpreter of the Constitution.”).
****
The court’s recent en banc decision in El-Shifa
Pharmaceutical Industries Co. v. United States, ___ F.3d ___,
2010 WL 2352183 (D.C. Cir. Jun. 08, 2010) (No. 07-5174),
lends no credence to the panel majority opinion in this case. El-
Shifa states that a court must “conduct a discriminating analysis
of the particular question posed in the specific case before the
court,” id. at *4 (internal quotation marks omitted), before
applying the political question doctrine. Obviously, this means
that we must look to the disputed statute itself and ask whether
that statute sets limits on Executive authority, or whether the
statute authorizes or necessitates judicial review of actions
textually committed to the President. If we follow this
prescription here, there can be no doubt that the Zivotofskys’
claim in this case raises a separation of powers rather than
political question issue. Section 214(d), the statutory provision
at issue in this case, is straightforward and clearly aimed at
infringing on the Executive’s authority. The statute is boldly
entitled “United States Policy with Respect to Jerusalem as the
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Capital of Israel.” And Congress has provided that, “For
purposes of the registration of birth, certification of nationality,
or issuance of a passport of a United States citizen born in the
city of Jerusalem, the Secretary shall, upon the request of the
citizen or the citizen’s legal guardian, record the place of birth
as Israel.” § 214(d). What could be more clear? The statute
raises a simple separation of powers issue that is ripe for judicial
resolution.
In El-Shifa, by contrast, resolution of the case required an
examination of the President’s reasons for a military strike,
based on general laws that are not on their face aimed at
Executive authority. Zivotofsky and El-Shifa are on opposite
ends of the separation of powers/political question spectrum.
****
The panel majority opinion is ironic insofar as it proclaims
to dismiss the Zivotofskys’ action solely on “jurisdictional”
grounds and disclaims any decision on the merits. The truth of
the matter is just the opposite. The panel majority opinion rather
obviously rests on the premise that, because § 214(d) directly
infringes the Executive’s recognition power, Congress exceeded
its constitutional authority in enacting the disputed statute.
Absent this premise, the judgment reached by the panel majority
would be incomprehensible. Indeed, Government counsel
conceded during oral argument that a judgment in its favor
undoubtedly would be taken as a declaration by this court that
Congress’ statutory enactment is unconstitutional. I agree with
this conclusion, which obviously does not implicate the political
question doctrine.